IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1485/2017 (PAR) BETWEEN:
1. SRI RAMAKRISHNAPPA AGED ABOUT 59 YEARS S/O LATE MUNEGOWDA 2. SRI R.SHIVAPRAKASH AGED ABOUT 32 YEARS S/O RAMAKRISHNAPPA 3. SRI R.BABU AGED ABOUT 28 YEARS S/O RAMAKRISHNAPPA ALL ARE R/AT MUTHANUR VILLAGE GULAHALLI POST BUDIKOTE HOBLI BANGARPET TALUK KOLAR DISTRICT – 563 114 …APPELLANTS (BY SRI PAPI REDDY G., ADV.) AND:
1. SRI M.GOVINDAPPA AGED ABOUT 64 YEARS S/O LATE MUNEGOWDA R/AT MUTHANUR VILLAGE GULAHALLI POST BUDIKOTE HOBLI BANGARPET TALUK KOLAR DISTRICT – 563 114 2. SRI G.MANJUNATHA AGED ABOUT 32 YEARS S/O M.GOVINDAPPA R/AT VIJAYALAKSHMI BOOK SOTES KSRTC BUS STAND CHICKMANGALURU POST CHICKMANGALURU DISTRICT – 577 101 …RESPONDENTS (R-1 & R-2 SERVED & UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.04.2017 PASSED IN R.A.NO.136/2014 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR (SITTING AT KGF), DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 27.03.2014 PASSED IN O.S.NO.197/2007 ON THE FILE OF THE CIVIL JUDGE AND JMFC, BANGARPET.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of defendants-1 to 3 arises out of the judgment and decree dated 18.4.2017 in Regular Appeal No.136/2014 passed by the III Additional District & Sessions Judge, Kolar (sitting at K.G.F.).
2. By the impugned judgment, the First Appellate Court has dismissed the appeal of the appellants and confirmed the judgment and decree dated 27.3.2014 in O.S.No.197/2007 passed by the Civil Judge & J.M.F.C., Bangarpet.
3. By the said judgment and decree, the Trial Court had decreed the suit of the plaintiff for partition and separate possession of his half share in the suit schedule properties.
4. Appellants-1 to 3 were defendant Nos.1 to 3.
Respondent No.1 was the plaintiff and respondent No.2 was defendant No.4 before the trial court. Defendant Nos.2 and 3 are the sons of defendant No.1. Defendant No.4 was the son of the plaintiff. Plaintiff and defendant No.1 are full brothers. One Mallegowda was the brother of Munegowda, father of the plaintiff and first defendant.
5. The suit schedule properties were the absolute properties of Mallegowda. Mallegowda died on 27.3.2007. Plaintiff filed O.S.No.197/2007 claiming that himself and the first defendant were the only surviving Class-II heirs of Mallegowda and on his death, both are entitled to equal half share in the suit schedule properties.
6. Defendant No.1 filed written statement contending that Mallegowda has bequeathed plaint schedule item nos.1 and 2 property under Ex.D1 registered Will dated 27.7.1994 in favour of defendant Nos.2 to 4 equally. He further contended that Mallegowda bequeathed plaint schedule item Nos.3 and 4 properties in his favour under Ex.D2 Will dated 18.1.2005.
7. Defendants-2 and 3 did not file any written statement propounding the Will Ex.D1 though they were beneficiaries under the Will. Defendant No.4 did not appear and contest the suit. Plaintiff disputed both the Wills.
8. There was no dispute between plaintiff and defendant No.1 that if there is no testamentary disposition of item nos.1 to 4 properties, both of them as Class-II heirs were entitled to equal share in the suit schedule properties.
9. The burden of proving both the Wills Exs.D1 and D2 was on defendant No.1. As already pointed out, defendant Nos.2 to 4 did not contest the plaintiff’s claim nor they propounded any Will. Defendant No.1, who propounded the Will Ex.D2, did not examine the attestor of the Wills. Therefore, the trial court held that the execution of the Wills was not proved and decreed the suit.
10. Though defendant Nos.2 and 3 had not filed written statement before the trial court, they joined defendant No.1 in filing R.A.No.136/2014 before the III Additional District and Sessions Court, Kolar (sitting at K.G.F.), challenging the judgment and decree of the trial court in O.S.No.197/2007.
11. Before the first appellate court, the appellants filed I.A.No.2 under Order XLI Rule 27 CPC seeking leave to furnish a list of witnesses and to examine the witnesses as additional evidence. Along with the application, appellants furnished the list of five witnesses, who were the alleged scribes and attesting witnesses to Exs.D1 and D2. The application was opposed by the plaintiff/first respondent.
12. The first appellate court on hearing the parties concurred with the findings and reasonings of the trial court regarding proof of Will on the ground that the attesting witnesses were not examined to comply the requirement of Section 68 of the Evidence Act.
13. The first appellate court rejected I.A.No.2 on the ground that the year of the Will mentioned in written statement of defendant No.1 does not match with the year mentioned in Ex.D2. The first appellate court further held that defendant Nos.2 and 3 have not filed any written statement at all and defendant Nos.1 to 3 did not file any list of witnesses before the trial court. Further it was held that even before the first appellate court, application is filed after two years of filing of the appeal and no grounds were made out to accept additional evidence.
14. Sri.Papi Reddy G., learned Counsel for the appellants submits that the trial court did not give any opportunity to adduce further evidence to defendant Nos.1 to 3. He further submits that the first appellate court rejected I.A.No.2 on too technical grounds and to serve the ends of justice, the first appellate court should have allowed the additional evidence. According to him, not giving an opportunity to adduce additional evidence constitutes substantial question of law.
15. Having regard to the submission of the learned Counsel for the appellants and the material on record, the question that arises for consideration is:
“Whether the matter involves substantial question of law?”
16. The Hon’ble Supreme Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. - AIR 2001 SC 965 propounded on what is substantial question of law. It was held that on question of facts, the first appellate court is the last court. It was further held that to be a substantial question of law, there must be first a foundation laid before the courts below and that should emerge from consistent findings of the courts below on the point and shall have material bearing on the same.
17. When the first defendant set up Wills Exs.D1 and D2, Section 68 of the Indian Evidence Act requires him to examine at least one of the attestors to the said document. Except himself, defendant No.1 did not choose to examine any of the witnesses in support of the Will.
18. The beneficiaries under the Will defendant Nos.2 to 4 themselves did not file any written statement propounding such Wills. Though defendant No.1 in his written statement itself propounded the Will, did not furnish the list of witnesses.
19. The trial court records show that from the stage of closing the evidence of the defendants till the arguments were heard, the first defendant did not even file any application to recall the order dated 16.7.2016 forfeiting his right to lead further evidence. He did not seek leave to examine the attesting witnesses or the scribe. He did not even file the list of witnesses.
20. Order XVII Rule 1 CPC empowers the court to extend time to do the needful on the hearing dates, only if a party shows sufficient cause to grant adjournment. Even before the first appellate court, I.A.No.2 was filed after two years of filing of the appeal.
21. Order XLI Rule 27 CPC empowers the appellate court to receive additional evidence, only if the grounds mentioned in the said provision are satisfied. The said three grounds are (1) if the trial court unjustly rejected the documents produced by the party; (2) if the party could not adduce such evidence despite due diligence and (3) if the court requires such evidence for deciding the matter or for any other substantial cause.
22. The Hon’ble Supreme Court in Union of India –vs- Ibrahim Uddin & Another 2013 AIR SCW 2752 while interpreting the words ‘requirement’ and ‘substantial cause’ prescribed in Order XLI Rule 27 Sub-rule 1(b) CPC, held as follows:
“29. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realize the importance of a document does not constitute a “substantial cause” within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
30. The words “for any other substantial cause” must be read with the word “requires” in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.”
23. In the case on hand, defendant Nos.1 to 3 tried to take shelter under the ground that they could not adduce evidence despite due diligence. In the affidavit filed in support of I.A.No.2, first defendant contended that he was not aware that law requires him to examine the attesting witnesses and his Advocate advised him that since the Wills are registered, he need not examine the attesting witnesses.
24. Such allegations against his own counsel were made behind his back. Affidavit of the said counsel was not filed to show that he had given such advice. Except such baseless allegations, there was totally no justification for not doing the needful.
25. Having regard to these facts and circumstances and the judgment of the Hon’ble Supreme Court in Ibrahim Uddin’s case referred to supra, the first appellate court has rightly rejected the application. This court does not find any substantial question of law in the matter to admit the appeal. Therefore, the appeal is dismissed.
In view of disposal of the appeal, I.A.No.1/2018 does not survive for consideration and is disposed of accordingly.
Sd/- JUDGE KNM/-